____________________________________________ DENIED: January 12, 1993 ____________________________________________ GSBCA 12023-P-R VALIX FEDERAL PARTNERSHIP I, Protester, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. Shelton H. Skolnick, Derwood, MD, counsel for Protester. Barbara Robbins, Office of the General Counsel, Department of Health and Human Services, Washington, DC, counsel for Respondent. Before Board Judges PARKER, BORWICK, and HYATT. BORWICK, Board Judge. Background On November 17, 1992, we granted in part a protest brought by Valix Federal Partnership I against respondent, the Department of Health and Human Services, for the procurement of forty-seven personal computers. We concluded that the contracting officer's decision not to set aside a procurement for the exclusive participation of small business was erroneous. The decision was erroneous because it was premised on an assumption that there were not two small business firms in the applicable local labor surplus area that could manufacture the personal computers, defining manufacturing as adding fifty percent or more to the value of the product. We concluded that regulation--13 CFR 121.906(b)(2)--provided a less stringent standard for the contracting officer's consideration. We revised respondent's delegation of procurement authority to require consideration of that standard. Valix Federal Partnership I v. Department of Health and Human Services, GSBCA 12023-P (Nov. 17, 1992). On December 3, 1992, respondent filed its motion for reconsideration, arguing principally that the contracting officer's use of the more restrictive standard was mandated by statute, i.e, 15 U.S.C. 644(o) (1988). We deny respondent's motion for reconsideration. Discussion Section 644(o), Title 15, United States Code provides in pertinent part: (1) A concern may not be awarded a contract under subsection (a) as a small business concern unless the concern agrees that- . . . . (B) in the case of a contract for procurement of supplies (other than a procurement from a regular dealer in such supplies), the concern will perform work for at least 50 percent of the cost of manufacturing the supplies (not including the cost of materials.) 15 U.S.C. 644(o) (1988). The purpose of this legislation was to prevent the brokering of substantial portions of work to other than small business subcontractors when an award of a contract to a small business concern has been made. Sonicraft Inc. v. Defense Information Systems Agency, GSBCA 11750-P, 1992 BPD 182, at 39 (May 15, 1992); Report of the Committee on Armed Services on H.R. 4428, National Defense Authorization Act for Fiscal Year 1987, H. Rep. No. 718, 99th Cong., 2nd Sess. 257 (1986). The section controls award of contracts to small business concerns, but does not establish the fifty percent rule as the exclusive standard for making the determination whether to set aside a particular procurement for the exclusive participation of small business. An agency could determine, and subsequently demonstrate through comprehensive studies similar to pre-award surveys, that it would be a useless act to set aside a procurement for exclusive participation of small business concerns because no small business concerns were capable of award under the fifty percent rule. Respondent did not make that showing in this protest. Decision Respondent's motion for reconsideration is DENIED. _________________________ ANTHONY S. BORWICK Board Judge We concur: _________________________ ROBERT W. PARKER Board Judge _________________________ CATHERINE B. HYATT Board Judge